Five
accused were tried by the Sessions Judge, Hingoli, for the offences punishable
under Sections 302, 307, 147, 148 read with Section 149 of the Indian Penal
Code. All the five accused were found guilty of offences punishable under
Section 302 read with Section 149 IPC and also other allied offences by the
Sessions Judge. The accused filed appeal and by the impugned judgment, the
second accused Shivaji Kishanrao Ghuge alone was found guilty of offences under
Section 302 IPC and A-1 and A-3 to A-5 were found guilty of offences under
Section 326 read with Section 149 and offences under Section 147 and 148 IPC.
These accused have filed Criminal Appeal No. 173 of 2003 and second accused Shivaji
Kishanrao Ghuge has filed a separate appeal, viz. Criminal Appeal No. 187 of
2003.

The
incident happened on 25.6.1995 at about 1.30 p.m. in the agricultural field belonging to PW-1 Tukaram. Tukaram and his
deceased son, Gorakhnath Ghuge were in the agricultural field and the latter
was engaged in sowing 'moong' seeds. These appellants came there and asked PW-1
as to why he had purchased that agricultural land from Balaji. The appellants
claimed that they had a right over that property. The second accused Shivaji Kishanrao
Ghuge started assaulting Tukaram. Tukaram pleaded with the accused that the
matter could be settled amicably and that he was prepared to return the land,
but the quarrel did not end and the second accused and accused 3 to 5 mounted
an attack on PW-1 Tukaram and deceased Gorakhnath. The second accused Shivaji Kishanrao
Ghuge picked up an axe which was lying the field and inflicted three blows on
the head of Gorakhnath. The other appellants (accused 3 to 5) also assaulted
deceased Gorakhnath with 'lathis'. Gorakhnath died on the spot and PW-1 Tukaram
fell down on the ground. PW-1's grand daughter, Baby, came rushing to the field
and she was sent to fetch Tukaram's other son, Haribhau, from Hingoli. PW-13 Haribhau
came in the evening and sprinkled water on the face of PW-1, who then got up.
PW-13 took PW-1 and the dead body of Gorakhnath to his house. On the next day,
PW-1 went to the Police Station and lodged the First Information Report and
PW-14 took over the charge of investigation. PW-1 was examined by a Doctor, who
found seven injuries on his body. Except injury No. 3, all other injuries were
contusions. PW-7 conducted the post-mortem on the body of the deceased Gorakhnath,
who was found to have sufered multiple head injuries with fracture of skull. He
had many other incised injuries also on his body.

PW-1 Tukaram
is the only eye witness to the incident. Though prosecution examined one Shantabai,
who was allegedly working in the field, she turned hostile to the prosecution.
PW-1 in his evidence stated that the accused came and attacked PW-1 and his
deceased son, Gorakhnath. The evidence of PW-1 was discussed in detail both by
the Sessions Judge and the High Court.

The
High Court held that as the second accused Shivaji Kishanrao Ghuge found an axe
lying in the field, he picked it up and suddenly attacked Gorakhnath and that
it was difficult to assume that there was unlawful assembly consisting of all
the accused with the common object of causing death of Gorakhnath. The High
Court rightly came to that conclusion. We do not find any error with the
finding.

The
counsel for the appellants contended before us that the conviction of the appellants
(accused 1 and accused 3 to 5) under Section 326 read with Section 149 is not
sustainable as these accused did not cause any injuries either to PW-1 or
deceased Gorakhnath. This contention is not correct.

Accused
3 to 5 were armed with 'lathis'. The
injuries found on the body of the deceased Gorakhnath and the injuries found on
the body of the PW-1 were grievous in nature and must have been caused with a
weapon like 'lathi'.

However,
we find from the evidence of PW-1 that the first accused Kishanrao Narayanarao Ghuge
was not armed with any weapon. Though his presence there is not denied, but
evidently he had not caused any injury either on PW-1 or to deceased Gorakhnath.
Of course, all the accused came to the field, but as observed by the High
Court, it seems that the incident must have happened all of a sudden because of
the dispute regarding the land in question, between these accused on the one
hand and the PW-1 and his son on the other. Having regard to the circumstances
of the case, it is proved that accused 3 to 5 caused grievous hurt and they had common intention to commit such
offence, but the first accused Kishanrao Narayanrao Ghuge did no participate in
this venture. It is also pertinent to note that at the relevant time, he was 70
years of age and he must have accompanied the accused when the dispute
regarding the property arose.

Therefore,
we confirm the conviction and sentence of the second accused Shivaji Kishanrao Ghuge
for the offence under Section 302. As regards accused 3 to 5, we uphold the punishment imposed on them for offences
under Section 326 read with Section 34 IPC. Accused 3 to 5 are not guilty of offences under Section 147 and 148. They
are acquitted of the charges under Section 147 and 148. We do not find any
reason to interfere with the sentences imposed on any of these accused. Accused
3, 4 and 5 are directed to surrender to their bail bonds to undergo the
remaining part of the sentence. The first accused Kishanrao Naarayanrao Ghuge
is acquitted of all the charges and his bail bond shall stand cancelled.